TGR Helicorp Limited (in rec) v Rogers HC Auckland CIV 2008-404-4109

[2011] NZHC 23

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-004109

BETWEEN  TGR HELICORP LIMITED (IN RECEIVERSHIP)

First Plaintiff

ANDBASTIA INVESTMENTS LIMITED, GEORGE PETER GLAISTER & SONIA LEE GLAISTER AND PETER MARSDEN BARRY, ANDREA CAROL BARRY & DAVID BARSEN BARRY Second Plaintiffs

ANDGLENDA FRANCES ROGERS AND TREVOR VICEMAR ROGERS Defendants

Hearing:         2 February 2011

Counsel:         D Salmon and M Heard for the Plaintiffs

P Webb and A J Kingston for the Defendants

Judgment:      2 February 2011

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr D Salmon, Barrister, Auckland

Mr M Heard, LeeSalmonLong, Solicitors, Auckland

Mr P Webb, Barrister, Manukau

Mr B Webb, Webb Morice, Solicitors, Pukekohe

TGR HELICORP LIMITED (IN RECEIVERSHIP) V ROGERS AND ROGERS HC AK CIV 2008-404-004109

2 February 2011

[1]      This hearing today follows, of course, from my detailed judgment of 15

December 2010.   I recorded that unless there was compliance with the detailed orders set out in paragraph [137] of the judgment Mr Rogers would be committed to prison for one month.

[2]      The  orders  have  not  been  complied  with.    Mr  and  Mrs  Rogers  have, following the judgment, completed and it seems filed an affidavit responding to my judgment.  That affidavit did not reach me before the hearing but I have taken an opportunity to read a copy of it that had been served on the plaintiffs’ solicitors.  It is a reasonably lengthy affidavit but I considered it was necessary that I read it having regard to the seriousness of the matters that I am now dealing with.  That affidavit in its essence challenges numbers of the conclusions in my judgment.   It does not contain any material which justifies my taking a different course from that indicated in my judgment of 15 December.

[3]      Because the orders contained in paragraph [137] have not been complied with there is now an order for Mr Rogers’ immediate committal for the reasons set out in the earlier judgment for a period of one month.   That, of course, is committal to prison.

[4]      Mr Webb, on Mr Rogers’ behalf, has noted that Mr Rogers has had serious heart problems.   No submission was made in that regard to the effect that there should not be committal.  Mr Webb made that quite clear.  The only relief sought on Mr Rogers’ behalf is that I make a direction that Mr Rogers be able to take his medication with him to prison and I do make that direction.  It will, of course, be necessary that that be checked in accordance with any necessary security arrangements.   Prison authorities will also, of course, take all necessary steps to ensure that Mr Rogers’ health needs are properly met.

[5]      The sentence of one month’s imprisonment will be terminated immediately if

there is compliance in full with the orders recorded in the judgment of 15 December

2010.

[6]      In respect of Mr Rogers I make a further order that he attend Court on 3

March 2011 at 10:00 am if there is no compliance prior to that date.  The purpose of the appearance on that  date is to review the matter.   If there has still been no compliance with the orders a further committal may be considered. As I indicated in the course of discussions with counsel the possibility of a further committal will be considered in accordance with the decision of the Supreme Court in Siemer v Solicitor-General[1]which was reported in 2010.

[1] Siemer v Solicitor-General [2010] 3 NZLR 767 (SC).

[7]      In respect of Mrs Rogers I have left open the question as to whether there should be any further orders against her in respect of my finding of contempt by her of the earlier Court orders.   What I propose to do in respect of Mrs Rogers is to adjourn this question further to the hearing on 3 March 2011 at 10:00 a.m.  I do make an order as part of the contempt proceeding that Mrs Rogers attend on that date.  I record, and again as earlier indicated in the course of discussion with counsel, that I will be bound to consider on that date whether or not there should be further orders against Mrs Rogers including the possibility of committing Mrs Rogers to prison for a period for non-compliance with Court orders.

[8]      In respect of the possibility of committing Mrs Rogers to prison and the possibility of a further committal of Mr Rogers I do wish to make clear that that is a matter for consideration at the next date.  I have made reference to this several times to give both Mr Rogers and Mrs Rogers full opportunity to reflect further on these matters.

[9]      The remaining question relates to the substantive proceeding.  As proposed by Mr Salmon I do not intend to make any directions in that regard today.   The plaintiffs’ solicitors  will  file  a  memorandum  setting  out  their  proposals  for  the conduct of the substantive proceeding including any questions relating to the need to

serve third parties.

Peter Woodhouse J